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Employee Termination: 20 Steps to Avoid Wrongful Termination Lawsuits

Does any manager ever get used to dealing with employee termination?

When I became a manager for the first time, I did not realize that one of the most difficult tasks I would have to face was navigating through employee termination when individuals were no longer a good fit for the team. Terminating employees is often the last thing any of us as managers wants to do. After all, it’s a daunting conversation for both the manager and the employee.

Of course, it would be so much easier if we could just hire for a position, quickly train, and retain that employee for years. But, unfortunately, sometimes employees just don’t work out. And this dilemma disrupts not only the life and career of the employee in question, but also the entire team.

Maybe the employee didn’t understand the position they were committing to, or maybe they had a poor attitude or a lousy work ethic. Maybe they violated your company’s ethics. Either way, it’s never easy to let somebody go. And while an employee’s feelings are important, there are legal implications to think about as well. In a world riddled with lawsuits and pointing fingers, it’s important to protect yourself and your business. This article will explore several important considerations to think over when deciding how-to conduct employee terminations.

1.Have a real, job-related reason for employee

Not liking someone is clearly not enough. Your reason for letting someone go has to be directly related to their specific position, and must be clear. For example, a customer service employee must be responsive to customer’s concerns, organized, and patient. If they don’t meet the mark on position specific requirements, you may be absolutely right in deciding to let them go. However, if you’re not clear regarding your reason for employee termination, you’re leaving yourself and the business vulnerable to accusations regarding discrimination and wrongful termination.

2.Give ample warnings.

Being fired shouldn’t come as a shock to an employee. Employee termination should be merely the last conversation of many regarding your employees performance. Warnings can be a combination of both more informal, verbal warnings and more formal written and filed warnings.

Aaron Ziff, Vice President of International Strategy and Consulting explains, “Document, document, document. Without proper documentation of company rules, position requirements and expectations, infractions and disciplinary policies, you will lose most lawsuits.”

According to Jeff Haden of Inc., “Except where zero-tolerance policy violations are concerned, firing an employee should always be the last step in a relatively formal and structured process: Identify sub-par performance, provide additional training or resources, set targets and time lines for performance improvement, follow up when progress is lacking—and document each step in writing. Documentation not only protects your business, it also helps ensure the employee was given every chance to succeed. You—and the employee—deserve more than a trail of bread crumbs.”

3.Think about offering a probationary period.

Probationary periods can be a great tool. Following a series of warnings, you can explain to your employee that they are on a probationary employment status. It is often easier to let someone go when they are on probation, both emotionally and legally. This way, they already know things aren’t going so well, and may even leave on their own. Read into the legal do’s and don’ts further before offering a probationary period to an employee as they can be a bit complicated.

4.Be sure.

The last thing you want is to be swayed by your employees banter, or get involved in an argument. When you have the termination conversation with your employee, make sure you are certain of your decision before going in. If you are certain, you can speak from a confident place, and not be dragged into any frivolous arguments or debates that will likely lead absolutely nowhere. If you’re unsure of your decision, wait until you’re absolutely sure before sitting down for this employee termination discussion.

In addition to being sure about your decision, be prepared for questions. It’s likely your employee will have questions regarding the end date of their employment, how to handle important benefits, returning company property, or final paychecks. Rather than scrambling for answers on the fly, be prepared. Don’t run in to this firing meeting from something else. Give yourself at least 15 minutes alone prior to get your ducks in a row. The more confidence you have behind your decision, the greater chance of a constructive dismissal.

5.Pick the right time and place.

Timing and place are crucial for a constructive dismissal. Choose a time that is on the slower side, so you don’t catch your employee at a busy moment during the workday. The place you choose to have the conversation should be private, and somewhat removed from the rest of the team.

According to Greg Syzmanski, Director of Human Resources at Geonerco Management, “Plan the date, time and place — I prefer earlier in the week, and never on Friday. Do it during lunch or at another time when business impacts are minimized. Conference rooms are good places.”

6.Don’t say too much.

When you’re in the middle of this difficult conversation, don’t make any offers you can’t follow through on, and don’t attack character. Make statements about job performance, but attack the person themselves. It’s also normal to want to fill in the silence during an conversation like this. But, don’t let anxiety speak. Choose your words carefully, and stop yourself before you speak unnecessarily. It’s all too easy to make promises when you know someone is uncomfortable, but don’t.

7.Don’t blame your higher ups.

Own your decision, and stand on it with confidence. Don’t push off the blame for the decision to someone else. Even if the decision did come from your superiors, you are the one sitting with this employee and having this conversation, so be present and speak for yourself.

It’s likely your employee will be at least somewhat upset by this change. Take time to quietly listen to their concerns. Remember, you don’t have to answer or provide solutions, just kindly hear their words. Think about your body language. Lean in slightly, nod, and uncross your arms.

8.Show calm compassion.

It’s perfectly okay to offer support and compassion without making any promises. Feel free to offer some words of encouragement and kindness, such as, “I understand,” or “I know this is a difficult thing.” A little compassion can go a long way in terms of calming nerves and making the process feel like something they can overcome in time. After all, you want them to leave with a sense of resilience and hope for their future.

9.Involve a trusted colleague or representative from HR.

Bring somebody with you when you have decided to have your discussion about employee termination. Witnesses will soften the conversation and potentially protect youfrom allegations later on. Having someone else there may seem awkward at first, but even if you’re part of a very small business, enlist some support. This person can be a neutral third party, and a witness to how you properly handled the situation.

10.Offer some type of severance package.

Maybe you can’t give your terminated employee a full severance package, but perhaps you an give them some type of value when they leave. Perhaps it’s as small as a day’s wages, or allowing them to be paid for their unused vacation time. While it may seem like an unnecessary expense, it will soften the employee termination process, and potentially protect you from legal action later on.

11.Say something kind and end the conversation.

Say something nice, stand up, and shake hands. Something as simple as, “I’m sorry this didn’t work out, and I wish you the best in the future” can go a long way, and place a period at the end of the sentence.

12.Help them leave and pack up their things privately.

In any way possible, try to facilitate a private exit. There’s nothing worse than having a terminated employee pack up their things in front of an audience. Choose a time where this can be done quietly and discreetly.

13.Have someone walk them out.

Again, while this may seem unnecessary, it’s never a bad thing to have a companion during difficult times. This person can ensure that the terminated employee leaves the building in a timely manner, and also can play the role as a buffer during this potentially emotional transition.

14.Consider the rest of your team.

A firing does not just impact the terminated employee. It’s likely that their tasks will need to be passed on to other members of the team. Think this through, and make a plan for their tasks.

15.Debrief the team.

Without proper communication from you, your team will wonder what happened to theseparated employee, and may fill in the blanks with their imagination. Rather than leave your reputation with your subordinates up to chance, take some time to go over some of the details with them, protecting privacy, of course. Reiterate your expectations, and help them get focused back on their workday.

16.Proactively protect yourself in the future.

Think about including stronger protection in your employee agreements at the start of the job, including wording about at-will employment, meaning the employer or the employee can terminate the relationship at-will. These agreements should be signed when an employee joins the team.

17.Put policies and procedures in writing.

While an employee handbook can seem like an unnecessary stack of paper, it can go a long way in terms of protecting your business from a disgruntled employee later on. Lay out your expectations clearly, so you can limit confusion and everyone is on the same page when it comes to employee termination.

18.Have a regular appraisal schedule.

Set a time and place to conduct regular reviews with your employees. This way, you can address issues right away, as well as compliment an employee adding value to your team. Employees can then plan for these meetings, and can align their behaviors and task management to your expectations.

Let’s face it, letting someone go is never easy. It is a decision that will impact the employee’s personal and professional life, and force them to make some new decisions about their future. It’s an important conversation, and should definitely not be entered into lightly.

But, when you’re properly prepared, you can do it right. Conducting an employee termination the right way means you can not only soften the blow, but also protect yourself and the business from the possibility of legal actions and wrongful termination lawsuits. Do your homework, and the process will likely go smoother. With some solid research, you can protect yourself and make the termination go smoother for both you and your subordinate.

We’d love to hear from you out there in the trenches as to your own experiences. What are some useful tips you have used in a employee termination situation?